|Michael M. v. Superior Court
25 Cal.3d 608, 601 P.2d 572, affirmed.
[ Rehnquist ]
[ Stewart ]
[ Blackmun ]
[ Brennan ]
[ Stevens ]
Michael M. v. Superior Court
CERTIORARI TO THE SUPREME COURT OF CALIFORNIA
JUSTICE STEWART, concurring.
Section 261.5, on its face, classifies on the basis of sex. A male who engages in sexual intercourse with an underage female who is not his wife violates the statute; a female who engages in sexual intercourse with an underage male who is not her husband does not. [n1] The petitioner contends that this state law, which punishes only males for the conduct in question, violates his Fourteenth Amendment right to the equal protection of the law. The Court today correctly rejects that contention.
At the outset, it should be noted that the statutory discrimination, when viewed as part of the wider scheme of California law, is not as clearcut as might at first appear. Females are not freed from criminal liability in California for engaging in sexual activity that may be harmful. It is unlawful, for example, for any person, of either sex, to molest, annoy, or contribute to the delinquency of anyone under 18 years of [p477] age. [n2] All persons are prohibited from committing "any lewd or lascivious act," including consensual intercourse, with a child under 14. [n3] And members of both sexes may be convicted for engaging in deviant sexual acts with anyone under 18. [n4] Finally, females may be brought within the proscription of § 261.5 itself, since a female may be charged with aiding and abetting its violation. [n5]
Section 261.5 is thus but one part of a broad statutory scheme that protects all minors from the problems and risks attendant upon adolescent sexual activity. To be sure, § 261.5 creates an additional measure of punishment for males who engage in sexual intercourse with females between the ages of 14 and 17. [n6] The question then is whether the Constitution prohibits a state legislature from imposing this additional sanction on a gender-specific basis.
The Constitution is violated when government, state or federal, invidiously classifies similarly situated people on the basis of the immutable characteristics with which they were [p478] born. Thus, detrimental racial classifications by government always violate the Constitution, for the simple reason that, so far as the Constitution is concerned, people of different races are always similarly situated. See Fullilove v. Klutznick, 448 U.S. 448, 522 (dissenting opinion); McLaughlin v. Florida, 379 U.S. 184, 198 (concurring opinion); Brown v. Board of Ed., 347 U.S. 483; Plessy v. Ferguson, 163 U.S. 537, 552 (dissenting opinion). By contrast, while detrimental gender classifications by government often violate the Constitution, they do not always do so, for the reason that there are differences between males and females that the Constitution necessarily recognizes. In this case, we deal with the most basic of these differences: females can become pregnant as the result of sexual intercourse; males cannot.
As was recognized in Parham v. Hughes, 441 U.S. 347, 354,
a State is not free to make overbroad generalizations based on sex which are entirely unrelated to any differences between men and women or which demean the ability or social status of the affected class.
Gender-based classifications may not be based upon administrative convenience, or upon archaic assumptions about the proper roles of the sexes. Craig v. Boren, 429 U.S. 190; Frontiero v. Richardson, 411 U.S. 677; Reed v. Reed, 404 U.S. 71. But we have recognized that, in certain narrow circumstances, men and women are not similarly situated; in these circumstances, a gender classification based on clear differences between the sexes is not invidious, and a legislative classification realistically based upon those differences is not unconstitutional. See Parham v. Hughes, supra; Califano v. Webster, 430 U.S. 313, 316-317; Schlesinger v. Ballard, 419 U.S. 498; cf. San Antonio Independent School Dist v. Rodriguez, 411 U.S. 1, 59 (concurring opinion).
[G]ender-based classifications are not invariably invalid. When men and women are not, in fact, similarly situated in the area covered by the legislation in question, the Equal Protection Clause is not violated.
Applying these principles to the classification enacted by the California Legislature, it is readily apparent that § 261.5 does not violate the Equal Protection Clause. Young women and men are not similarly situated with respect to the problems and risks associated with intercourse and pregnancy, and the statute is realistically related to the legitimate state purpose of reducing those problems and risks.
As the California Supreme Court's catalog shows, the pregnant unmarried female confronts problems more numerous and more severe than any faced by her male partner. [n7] She alone endures the medical risks of pregnancy or abortion. [n8] She suffers disproportionately the social, educational, and emotional consequences of pregnancy. [n9] Recognizing this disproportion, [p480] California has attempted to protect teenage females by prohibiting males from participating in the act necessary for conception. [n10]
The fact that males and females are not similarly situated with respect to the risks of sexual intercourse applies with the same force to males under 18 as it does to older males. The risk of pregnancy is a significant deterrent for unwed young females that is not shared by unmarried males, regardless of their age. Experienced observation confirms the common sense notion that adolescent males disregard the possibility of pregnancy far more than do adolescent females. [n11] And to the extent that § 261.5 may punish males for intercourse with prepubescent females, that punishment is justifiable because of the substantial physical risks for prepubescent females that are not shared by their male counterparts. [n12] [p481]
The petitioner argues that the California Legislature could have drafted the statute differently, so that its purpose would be accomplished more precisely.
But the issue, of course, is not whether the statute could have been drafted more wisely, but whether the lines chosen by the . . . [l]egislature are within constitutional limitations.
Kahn v. Shevin, 416 U.S. 351, 356, n. 10. That other States may have decided to attack the same problems more broadly, with gender-neutral statutes, does not mean that every State is constitutionally compelled to do so. [n13]
In short, the Equal Protection Clause does not mean that the physiological differences between men and women must be disregarded. While those differences must never be permitted to become a pretext for invidious discrimination, no such discrimination is presented by this case. The Constitution surely does not require a State to pretend that demonstrable differences between men and women do not really exist.
1. But see n. 5 and accompanying text, infra.
2. See Cal.Penal Code Ann. §§ 272, 647a (West Supp. 1981).
3. Cal.Penal Code Ann. § 288 (West Supp. 1981). See People v. Dontanville, 10 Cal.App.3d 783, 796, 89 Cal.Rptr. 172, 180 (2d Dist.).
4. See Cal.Penal Code Ann. §§ 286(b)(1), 288a(b)(1) (West Supp. 1981) .
5. See Cal.Penal Code Ann. § 31 (West 1970); People v. Haywood, 131 Cal.App.2d 259, 280 P.2d 180 (2d Dist.); People v. Lewis, 113 Cal.App.2d 468, 248 P.2d 461 (1st Dist.). According to statistics maintained by the California Department of Justice Bureau of Criminal Statistics, approximately 14% of the juveniles arrested for participation in acts made unlawful by § 261.5 between 1975 and 1979 were females. Moreover, an underage female who is as culpable as her male partner, or more culpable, may be prosecuted as a juvenile delinquent. Cal.Welf. & Inst.Code Ann. § 602 (West Supp. 1981); In re Gladys R., 1 Cal.3d 855, 867-869, 464 P.2d 127, 136-138.
6. Males and females are equally prohibited by § 288 from sexual intercourse with minors under 14. Compare Cal.Penal Code Ann. § 288 (West Supp. 1981) with Cal.Penal Code Ann. §§ 18, 264 (West Supp. 1981).
7. The court noted that, from 1971 through 1976, 83.6% of the 4,860 children born to girls uder 15 in California were illegitimate, as were 51% of those born to girls 15 to 17. The court also observed that, while accounting for only 21% of California pregnancies in 1976, teenagers accounted for 34.7% of legal abortions. See ante at 470, n. 3.
8. There is also empirical evidence that sexual abuse of young females is a more serious problem than sexual abuse of young males. For example, a review of five studies found that 88% of sexually abused minors were female. Jaffe, Dynneson, & ten Bensel, Sexual Abuse of Children, 129 Am.J. of Diseases of Children 689, 690 (1975). Another study, involving admissions to a hospital emergency room over a 3-year period, reported that 86 of 100 children examined for sexual abuse were girls. Orr & Prietto, Emergency Management of Sexually Abused Children, 133 Am.J. of Diseased Children 630 (1979). See also State v. Craig, 169 Mont. 150, 156-157, 545 P.2d 649, 653; Sarafino, An Estimate of Nationwide Incidence of Sexual Offenses Against Children, 58 Child Welfare 127, 131 (1979).
9. Most teenage mothers do not finish high school, and are disadvantaged economically thereafter. See Moore, Teenage Childbirth and Welfare Dependency, 10 Family Planning Perspectives 233-235 (1978). The suicide rate for teenage mothers is seven times greater than that for teenage girls without children. F. Nye, School-Age Parenthood (Wash.State U.Ext.Bull. No. 667) 8 (1976). And 60% of adolescent mothers aged 15 to 17 are on welfare within two to five years of the birth of their children. Teenage Pregnancy, Everybody's Problem 3-4 (DHEW Publication (HSA) No. 77-5619).
10. Despite the increased availability of contraceptives and sex education, the pregnancy rates for young women are increasing. See Alan Guttmacher Institute, 11 Million Teenagers 12 (1976). See generally C. Chilman, Adolescent Sexuality in a Changing American Society (NIH Pub. No. 80-1426, 1980).
The petitioner contends that the statute is overinclusive because it does not allow a defense that contraceptives were used, or that procreation was for some other reason impossible. The petitioner does not allege, however, that he used a contraceptive, or that pregnancy could not have resulted from the conduct with which he was charged. But even assuming the petitioner's standing to raise the claim of overbreadth, it is clear that a statute recognizing the defenses he suggests would encounter difficult, if not impossible, problems of proof.
11. See, e.g., Phipps-Yonas, Tecnage Pregnancy and Motherhood, 50 Am.J.Orthopsychiatry 403, 412 (1980). See also State v. Rundlett, 391 A.2d 815, 819, n. 13, 822 (Me.); Rundlett v. Oliver, 607 F.2d 495, 502 (CA1).
12. See Barnes v. State, 244 Ga. 302, 260 S.E.2d 40; see generally Orr & Prietto, supra; Jaffee, Dynneson, & ten Bensel, supra; Chilman, supra.
13. The fact is that a gender-neutral statute would not necessarily lead to a closer fit with the aim of reducing the problems associated with teenage pregnancy. If both parties were equally liable to prosecution, a female would be far less likely to complain; the very complaint would be self-incriminating. Accordingly, it is possible that a gender-neutral statute would result in fewer prosecutions than the one before us.
In any event, a state legislature is free to address itself to what it believes to be the most serious aspect of a broader problem.
[T]he Equal Protection Clause does not require that a State must choose between attacking every aspect of a problem or not attacking the problem at all.397 U.S. 471, 486-487; see also Williamson v. Lee Optical Co., 348 U.S. 483.